Judge: Curtis A. Kin, Case: 23STCP03614, Date: 2024-03-12 Tentative Ruling

Case Number: 23STCP03614    Hearing Date: March 12, 2024    Dept: 82

PETITION FOR RELIEF FROM

GOVERNMENT CODE SECTION 945.4

Date:               3/12/24 (1:30 PM)

Case:               Daniel Anselmo Velasquez v. City of Los Angeles et al. (23STCP03614)

TENTATIVE RULING:

Petitioner Daniel Anselmo Velasquez’s Petition for Relief from the Government Code Section 945.4 Pursuant to Government Code Section 946.6 is DENIED.

On December 7, 2022, petitioner Daniel Anselmo Velasquez claims he injured in a motor vehicle collision when respondent Roberto Morelos, while intoxicated, struck several vehicles, including petitioner’s vehicle. (Pet. at 2:5-9, 4:5-9; Mitchell Decl. ¶ 19 & Ex. 1 [petitioner claims medical expenses and physical and emotional injury].) A claim relating to a cause of action for personal injury must be presented to the public entity no later than six months after the accrual of the cause of action.¿ (Gov. Code § 911.2; Munoz v. State of California¿(1995) 33 Cal.App.4th 1767, 1776.)¿Accordingly, petitioner had until June 7, 2023 to present a claim to respondent City of Los Angeles (“City”).

Petitioner did not file a claim with the City until June 15, 2023. (Mitchell Decl. ¶¶ 13, 19 & Ex. 1.) Petitioner timely filed an application to present a late claim on or about August 16, 2022, within one year of the December 7, 2022 date of accrual. (Id. ¶¶ 16, 20 & Ex. 2.) The application was denied on September 19, 2023. (Hayes Decl. ¶ 3 & Ex. C.)

Petitioner files this petition seeking relief under Government Code § 946.6 to present a late claim. The instant petition was filed on October 3, 2023, within six months of September 19, 2023, pursuant to Government Code § 946.6(b).

Petitioner is required to demonstrate that the failure to present a claim under Government Code § 945.4 was “through mistake, inadvertence, surprise, or excusable neglect….” (Gov. Code § 946.6(c)(1).)  “The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief…. There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293.) “The party seeking relief based on a claim of mistake must establish he was diligent in investigating and pursuing the claim [citation] and must establish the necessary elements justifying relief by the preponderance of the evidence.” (Ibid.)

According to petitioner’s application for leave to present a late claim, petitioner contacted his counsel on December 8, 2022, the day after the subject motor vehicle collision. (Mitchell Decl. ¶ 5; see also id. ¶ 19 & Ex. 1 [date of injury identified as December 7, 2022 in Claim for Damages].) Petitioner advised his counsel’s office of the facts of which he was aware and produced photographs from the scene of the collision. (Mitchell Decl. ¶ 6.) Notably, petitioner also provided the first page of the traffic collision report to his counsel. (Mithcell Decl. ¶ 7.)  On that first page, “CITY OF LA” is listed as the “INSURANCE CARRIER” for driver “ROBERTO MORELOS.”  (Hayes Decl. ¶ 2 & Ex. A at pg. 1.)

Counsel for petitioner attempted to speak to respondent Morelos’ insurance carrier and left voicemails on March 14 and April 5, 2023. (Mitchell Decl. ¶¶ 10, 11.) Counsel also states that he did not learn Morelos was employed by a government entity until the insurance carrier from some other driver involved in the collisions told him on June 12, 2023. (Mithcell Decl. ¶ 12.) Petitioner’s counsel also states that, although he requested a copy of the police report from the Los Angeles Police Department on January 11, 2023, he did not receive the report concerning the incident until July 14, 2023, after the time to file a government claim had elapsed. (Mitchell Decl. ¶¶ 9, 15.)

The foregoing averments are insufficient to establish reasonable diligence.

Notwithstanding petitioner’s contention that “neither the photographs nor the traffic collision report identified any party as having been an employee of any government entity” (see Mithcell Decl. ¶ 8), as noted above, the first page of the traffic collision report clearly indicates that Morelos’ insurance carrier was the “City of LA.” (Hayes Decl. ¶ 2 & Ex. A.) Counsel for petitioner admits petitioner had provided the first page of the report to counsel’s office when they first met on December 8, 2022. (Mitchell Decl. ¶¶ 5-7.) Based on the portion of the traffic collision report that both petitioner and petitioner’s counsel possessed at least as of December 8, 2022, petitioner was put on notice that Morelos was employed by the City. Petitioner had all the necessary information to file a claim with the City.

Although counsel for petitioner may not have been able to obtain a copy of the police report until after the six-month period to file a government claim had elapsed, petitioner does not explain why the first page of the traffic collision report was not sufficient for him to timely file a claim against the City. Petitioner also does not explain how the vague claim of having made two unanswered voicemails “to the insurance carrier for the driver of the rental truck [Roberto Morelos]” on March 14, 2023 and April 5, 2023 (see Mitchell Decl. ¶¶ 10-11), demonstrates reasonable diligence or establishes mistake, inadvertence, surprise or excusable neglect to warrant relief. 

In sum, petitioner fails to explain sufficiently why petitioner delayed in presenting his claim until after the presentation period set forth in Government Code § 911.2. Petitioner consequently does not demonstrate the diligence necessary to obtain relief under Government Code § 946.6. While there is a “general policy favoring trial on the merits,” it “cannot be applied indiscriminately so as to render ineffective the statutory time limits.” (Department of Water, 82 Cal.App.4th at 1293.)

The petition is DENIED.